USA v. D'Andrea et al

Filing 84

ORDER. The 83 Renewed Motion to Dismiss United States' Remaining Claimfor Foreclosure, which the Court construes as a motion pursuant to Fed. R. Civ. P. 60(b)(5), is granted. Gilbert and PCSU are relieved from the 9/29/2010 judgment. The United States may not foreclose on the subject property. By Judge Philip A. Brimmer on 5/9/11.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-01940-PAB-MJW
UNITED STATES OF AMERICA,
Plaintiff,
v.
JONI K. D’ANDREA,
HOWARD MITCHELL GILBERT, and
PUBLIC SERVICE CREDIT UNION,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Renewed Motion to Dismiss United States’
Remaining Claim for Foreclosure [Docket No. 83] filed by plaintiff United States and
defendants Howard Mitchell Gilbert and Public Service Credit Union (“PSCU”). On
September 27, 2010, the Court accepted [Docket No. 78] the Recommendation of
United States Magistrate Judge [Docket No. 73] that “[j]udgment should enter in favor of
the United States and against defendant D’Andrea pursuant to [Colo. Rev. Stat.]
§ 38-8-108 . . . and alternatively the federal tax liens encumbering the subject property
should be ordered foreclosed, the subject property should be sold, and the proceeds
should be used to satisfy the federal tax liens of Monty L. Cook.” Docket No. 73 at 25.
On September 29, 2010, judgment entered pursuant to the Court’s September 27 order
in favor of plaintiff and against defendants.
Plaintiff and defendants Howard Mitchell Gilbert and Public Service Credit Union

believe that a claim remained after the entry of judgment and filed a joint motion to
dismiss that remaining claim with prejudice [Docket No. 81]. In a January 6, 2011
minute order, the Court pointed out that, to the extent a claim survived the judgment, it
was dismissed with prejudice as of the filing of the joint motion to that effect signed by
all the remaining parties. See Fed. R. Civ. P. 41(a)(1)(A)(ii). The United States,
Gilbert, and PSCU renewed their motion and contend that a court order is necessary to
effectuate their settlement of the United States’ claim for foreclosure of its tax lien. In
essence, the parties request that defendants Gilbert and PCSU be relieved from the
September 29, 2010 judgment to the extent it permitted the United States to foreclose
in the alternative. See Fed. R. Civ. P. 60(b)(5). In light of the agreement reached
between the United States, Gilbert, and PCSU, and the failure of D’Andrea to contest
the relief requested, it is
ORDERED that the Renewed Motion to Dismiss United States’ Remaining Claim
for Foreclosure [Docket No. 83], which the Court construes as a motion pursuant to
Fed. R. Civ. P. 60(b)(5), is GRANTED. It is further
ORDERED that Gilbert and PCSU are relieved from the September 29, 2010
judgment. The United States may not foreclose on the subject property.

DATED May 9, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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